Dalbir Singh vs State Of U.P & Ors

Dalbir Singh ...Petitioner

Vs.

State of U.P. and Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Alleging that because of custodial torture and diabolic acts of the

police officials of Noida Police, Somvir Singh @ Sonu aged 17 = years

lost his life. He was studying in 9th standard. After dis-continuing his

education he was helping his father, the petitioner, in his agricultural

activities.

2. The petitioner had described the factual scenario to be thus:

The deceased was called by his friend one Kunwar Pal resident of

Sikri PS Khurja and at relevant time residing at Telia ghat Khurja, PS

Khurja, distt. Bulandshahar at about 6 p.m. on 1st of September, 2006. He

told Sonu that five persons want to purchase some property. Since he

wanted to show them the land, he requested Sonu to go along with him.

They took him in the car. Since Sonu did not return till 9 PM, the petitioner

and his son who came from Faridabad started looking around for him and at

about 3.45 AM the petitioner saw that the said Kunwar Pal came out from a

lane. On enquiry about the whereabout of Sonu, the petitioner was informed

that Sonu had been taken by the Police officials of Sector 20 Noida Police

Station and he gave the telephone number of one Pradeep constable and

asked the petitioner to contact him. The petitioner immediately contacted on

the given number and the said constable told him that if he wanted to see

Sonu, he had to come to Sector 31 Police Station at 10 AM. They were not

given any further information. On trying to call up the number again to get

further details, there was no response from the telephone or it was switched

off. At about 9 A.M., the petitioner and his son reached Sector 31 Police

Station to look for the said constable Pradeep and were informed that he

was not on regular posting and that he used to visit the place occasionally.

The petitioner thereafter left Sector 20 and also called up the house and to

2 the utter shock and surprise was informed that the police officers from PS

Phurja Dehat had come and informed the family that Sonu had committed

suicide in Sector 20 lock up. It is only then that the family realized that said

five persons were policemen in plain clothes. On reaching Sector 20 the

petitioner was informed that the dead body was lying in the mortuary and

would be sent for post mortem. The petitioner and his son were taken to

Sector 94 Noida where they saw the dead body of Sonu lying on a stretcher.

The body was covered with injuries, black marks and abrasions all over. It

was clear that he had been badly beaten up. Blood was coming out from the

head.

S.S.P. R.K.S. Rathore and Additonal SSP came to the petitioner's

house and tried to convince him and his family that since Sonu was

involved in a case of looting, he had been arrested and he committed suicide

while in police lock up by hanging himself with his shirt. The post mortem

would have to be conducted. In the meantime, the news of Sonu's killing

having reached the village there was public out cry as there was one more

death in the hands of Noida Police and the matter appeared in the local

media mainly in vernacular. The petitioner lodged First Information Report

(in short the `FIR') with the police which threatened him and also tried to

pressurize him into accepting the theory of suicide. But the untimely murder

3 of the youngest child who was a law abiding citizen and had never been

involved in any anti social or criminal activities had lost his life in the hands

of the police and petitioner did not accept the statements, even at the cost of

threat from the police.

To calm down the tempers of the villagers, an FIR was ultimately

registered alongwith two other FIRs which have also been registered against

the deceased son of the petitioner; one for alleged loot of some mobile

phone, which has now been planted on the deceased and the other for

attempt to suicide. The FIR dated 2.9.2006 was registered against the

unknown police officers. All attempts by the petitioner to have an impartial

post mortem of the body of the deceased was thwarted by the police who

was insisting on the theory of the suicide by hanging with the help of shirt.

The external injuries all over the body of the deceased were not explained

and in fact the post mortem report itself is not accurate as compared with the

photographs. The petitioner and his other family members have given a

statement setting out the facts.

Pursuant to notice issued in this case, the State of U.P. has filed its

response. It is pointed out that the FIR has been registered and certain police

officials had been charged for commission of offences punishable under

4 Sections 330, 342 and 306 of the Indian Penal Code, 1860 (in short the

`IPC'). It is stated that sanction for prosecution has been given on

15.10.2008 and the charge sheet had been filed on 14.11.2008. The accused

persons surrendered before learned Chief Judicial Magistrate on 14.11.2008

and their bail applications had been rejected. Cognizance of the aforesaid

offences has been taken on 17.11.2008.

4. Learned counsel for the petitioner submitted that it is a clear case of

custodial torture and death and by giving a colour of Section 306 IPC, an

attempt is being made to protect the erring police officials. It is also stated

that the compensation should be paid.

5. Learned counsel for the respondent-State on the other hand submitted

that the police after investigation has not found any evidence of murder and

therefore the charge sheet had been filed. If at any stage it comes to the

notice of the Court that other offences are involved, certainly necessary

orders can be passed by the Court.

6. Custodial violence, torture and abuse of police power are not peculiar

to this country, but it is widespread. It has been the concern of international

community because the problem is universal and the challenge is almost

5 global. The Universal Declaration of Human Rights in 1948 which marked

the emergence of a worldwide trend of protection and guarantee of certain

basic human rights stipulates in Article 5 that "No one shall be subjected to

torture or to cruel, inhuman or degrading treatment or punishment". Despite

this pious declaration, the crime continues unabated, though every civilized

nation shows its concern and makes efforts for its eradication.

7. If it is assuming alarming proportions, now a days, all around it is

merely on account of the devilish devices adopted by those at the helm of

affairs who proclaim from roof tops to be the defenders of democracy and

protectors of peoples' rights and yet do not hesitate to condescend behind

the screen to let loose their men in uniform to settle personal scores,

feigning ignorance of what happens and pretending to be peace loving

puritans and saviours of citizens' rights.

8. Article 21 which is one of the luminary provisions in the Constitution

of India, 1950 (in short the `Constitution') and is a part of the scheme for

fundamental rights occupies a place of pride in the Constitution. The Article

mandates that no person shall be deprived of his life and personal liberty

except according to the procedure established by law. This sacred and

cherished right i.e. personal liberty has an important role to play in the life

6 of every citizen. Life or personal liberty includes a right to live with human

dignity. There is an inbuilt guarantee against torture or assault by the State

or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for

short the `Code') deals with the powers of arrest of persons and the

safeguards required to be followed by the police to protect the interest of the

arrested person. Articles 20(3) and 22 of the Constitution further manifest

the constitutional protection extended to every citizen and the guarantees

held out for making life meaningful and not a mere animal existence. It is

therefore difficult to comprehend how torture and custodial violence can be

permitted to defy the rights flowing from the Constitution. The

dehumanizing torture, assault and death in custody which have assumed

alarming proportions raise serious questions about the credibility of rule of

law and administration of criminal justice system. The community rightly

gets disturbed. The cry for justice becomes louder and warrants immediate

remedial measures. This Court has in a large number of cases expressed

concern at the atrocities perpetuated by the protectors of law. Justice

Brandies's observation which have become classic are in following

immortal words:

"Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into

7 himself". (in (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643 at 659).

9. The diabolic recurrence of police torture resulting in a terrible scare

in the minds of common citizens that their lives and liberty are under a new

and unwarranted peril because guardians of law destroy the human rights by

custodial violence and torture and invariably resulting in death. The

vulnerability of human rights assumes a traumatic torture when

functionaries of the State whose paramount duty is to protect the citizens

and not to commit gruesome offences against them, in reality perpetrate

them. The concern which was shown in Raghubir Singh's case (supra) more

than two decades back seems to have fallen to deaf ears and the situation

does not seem to be showing any noticeable change. The anguish expressed

in Gauri Shanker Sharma v. State of U.P. (AIR 1990 SC 709), Bhagwan

Singh and Anr. v. State of Punjab (1992 (3) SCC 249), Smt. Nilabati Behera

@Lalita Behera v. State of Orissa and Ors. (AIR 1993 SC 1960), Pratul

Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), Kewal

Pati (Smt.) v. State of U.P. and Ors. (1995 (3) SCC 600), Inder Singh v.

State of Punjab and Ors. (1995(3) SCC 702), State of M.P. v. Shyamsunder

Trivedi and Ors. (1995 (4) SCC 262) and by now celebrated decision in Shri

8 D.K. Basu v. State of West Bengal (JT 1997 (1) SC 1) seems to have caused

not even any softening attitude to the inhuman approach in dealing with

persons in custody.

10. Rarely in cases of police torture or custodial death, there is any direct

ocular evidence of the complicity of the police personnel alone who can

only explain the circumstances in which a person in their custody had died.

Bound as they are by the ties of brotherhood, it is not unknown that the

police personnel prefer to remain silent and more often than not even

pervert the truth to save their colleagues - and the present case is an apt

illustration - as to how one after the other police witnesses feigned

ignorance about the whole matter.

11. The exaggerated adherence to and insistence upon the establishment

of proof beyond every reasonable doubt by the prosecution, at times even

when the prosecuting agencies are themselves fixed in the dock, ignoring

the ground realities, the fact-situation and the peculiar circumstances of a

given case, as in the present case, often results in miscarriage of justice and

makes the justice delivery system suspect and vulnerable. In the ultimate

analysis the society suffers and a criminal gets encouraged. Tortures in

police custody, which of late are on the increase, receive encouragement by

9 this type of an unrealistic approach at times by the courts as well because it

reinforces the belief in the mind of the police that no harm would come to

them if one prisoner dies in the lock-up because there would hardly be any

evidence available to the prosecution to directly implicate them with the

torture. The courts must not lose sight of the fact that death in police

custody is perhaps one of the worst kind of crimes in a civilized society,

governed by the rule of law and poses a serious threat to an orderly civilized

society. Torture in custody flouts the basic rights of the citizens recognized

by the Indian Constitution and is an affront to human dignity. Police

excesses and the maltreatment of detainees/under- trial prisoners or suspects

tarnishes the image of any civilised nation and encourages the men in

`Khaki' to consider themselves to be above the law and sometimes even to

become law unto themselves. Unless stern measures are taken to check the

malady of the very fence eating the crops, the foundations of the criminal

justice delivery system would be shaken and the civilization itself would

risk the consequence of heading, towards total decay resulting in anarchy

and authoritarianism reminiscent of barbarism. The courts must, therefore,

deal with such cases in a realistic manner and with the sensitivity which

they deserve, otherwise the common man may tend to gradually lose faith in

the efficacy of the system of judiciary itself, which, if it happens, will be a

10 sad day, for any one to reckon with.

12. In view of the fact that sanction for prosecution has been granted,

charge sheet had been filed and cognizance had been taken, we feel that no

further direction at present is necessary. It is needless to say that if at any

point of time, evidence surfaces before the concerned Court to show that

some other offences appear to have been committed, necessary orders can

be passed. We are not for the present accepting the prayer for compensation

because that would depend upon the issue as to whether there was custodial

death. The writ petition is accordingly disposed of. We make it clear that

we have not expressed any opinion on the truth or otherwise of the

allegations made and which will be considered by the concerned court.

....................................J. (Dr. ARIJIT PASAYAT)

...................................J. (ASOK KUMAR GANGULY) New Delhi, February 3, 2009

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